Sarah Blackwell, an immigration attorney located in Milwaukee, Wisconsin, talks about hardship waivers, family immigration, removal proceedings and other general immigration topics.
Immigration law matters because keeping families together matters.

August 2012

August 10, 2012

Each State must decide whether to issue driver licenses and State IDs to individuals who are eligible for deferred action child hood arrival (DACA).

The State of Wisconsin will issue a driver license or State ID to individuals with approved DACA applications.

More likely than not, the card will be valid for no more than 2 years, though renewable if the holder gets re-approved for DACA.

That leads to the next question for those anxious to get a driver license: how long will the government take to decide a DACA application? That is unknown at this point. USCIS has said applications will be processed as quickly as possible and the actual amount of time will depend on the volume of applications received. I'm going to guess 3-5 months.

August 09, 2012

There's a bit of a debate going on among immigration attorneys whether to encourage individuals to apply as soon as possible or to wait until after the election.

Those who favor waiting until after the election are concerned for two reasons. First, deferred action for childhood arrivals (DACA) is under presidential order. If Romney gets elected, DACA could be cancelled in January 2013. So why spend the money? Second, after cancelling DACA, the Romney administration might then refer all the DACA applicants to immigration court and will have their contact details because of the DACA applications.

Those who favor applying early are not blind to the risk of DACA being cancelled if Romney gets elected. They favor early application because even if DACA gets cancelled, applicants can accrue benefits before that happens. First: when an employment authorization application gets filed, the government has to issue an employment authorization card within 90 days. The earliest applicants then are likely to get employment authorization in mid/late November, well before Romney would be sworn into office. Second: An employment authorization card then gets used to obtain a Social Security Number as well as a lawful job. The SSN is very useful for doing things like opening bank accounts and filing tax returns. Third: anyone who lives in a State that issues driver licenses to individuals in deferred action might be able to apply for a driver license just based on a receipt for the DACA application. Most likely the driver license will be good only for 2 years but a 2 year driver license is better than no driver license. So even if Romney gets elected, early DACA applicants will have work authorization, an SSN and maybe even a driver license well before Romney takes office. If Romney were to take away the work authorization, early applicants still would have their SSN and their driver license. Those two documents might be worth the cost of the forfeited work authorization.

What about the risk of referral to immigration court? Individuals who are genuinely eligible for DACA also meet the criteria for prosecutorial discretion: they have been here a long time, they have no major criminal convictions nor significant misdemeanor convictions. Even if they get denied DACA for failure to enroll in school or lack of proof they have been here the last five years, as long as they pass the criminal background criteria, they are not likely to be referred to immigration court because they meet prosecutorial discretion criteria. Hence, the risk of referral for DACA applicants with no criminal history is low.

Every DACA applicant should talk with an experienced immigration attorney. After careful assessment, the attorney will be able to advise whether you are likely to be granted DACA and help you decide whether you want to wait until it is known Obama will serve a second term.

August 08, 2012

So you have seen the video message from Senator Durbin and Representative Gutierrez. And you are wondering what to make of it. Is it good advice? Do you need an immigration attorney to help you with a deferred action application?

Messrs. Durbin and Gutierrez suggest patience and that is very good advice. The form for deferred action has not yet been published and the government is not yet accepting applications. August 15 is just a week away.

But as an immigration attorney, I can tell you there is a lot of bad advice in the video, no matter how well-intended it might be. The video contains mixed messages and makes overgeneralizations. The most disturbing advice in the video is that applicants do not need attorneys to help them. The intent is obviously to protect the public from fraud, but it inadvertently leaves its viewers at a disadvantage because it discourages people from ever talking with attorneys about deferred action. That is dangerous because although the deferred action process might look simple, nothing is simple when it comes to immigration law. Immigration law has a reputation as the second most complicated area of law in the U.S.

Messrs. Durbin and Guitierrez suggest people who work for community-based organizations (CBOs) and clergy will be better able to assist applicants than an experienced private immigration attorney. If they are also experienced immigration attorneys (and some are), then the statement is correct. Otherwise, the statement is incorrect.

Potential deferred action applicants should consult with attorney but not just any attorney. They should consult with an experienced immigration attorney. There are plenty of attorneys who will see deferred action as an opportunity to expand their practice areas and start doing immigration law. Some CBOs also might see deferred action as an opportunity to expand the services they offer, even if they have never offered immigration services before. They will be well-intentioned individuals, but they will not have full knowledge and experience of immigration law. They are likely to miss some of the nuances of immigration law. The gaps in their knowledge will be at an applicant's expense.

Getting advice from an experienced immigration attorney is important because the stakes for deferred action applicants are very high. If the application gets denied, not only do applicants risk being separated from family, but they also risk being sent back to their country of birth. For many, they either have no memories of living there or their memories are few. For them, the U.S. is their home. Even older applicants who were teenagers when they came have now lived so long in the U.S. that going back would be just as disastrous for their lives.

What is most disturbing about about the Durbin/Guiterrez video is it may induce people to go off and do their applications without bothering to get any professional advice. True, some will succeed. But some won't. There will be something in the facts of their case that makes them ineligible and their deferred action application will get denied. Alternatively, there won't be a problem with the deferred action application but the work authorization gets denied. Getting work authorization requires proving economic necessity. If the right arguments are not made, then work authorization will be denied. The unsuccessful applicant can always try again (for the work authorization), but has to pay the filing fee again.

Messrs. Durbin and Guiterrez also suggest that the information on the USCIS is complete and will help people safely navigate the deferred action application process. I wish that were true, but it is not. There are information gaps throughout the USCIS instructions for the various forms. As an example, on the application for renewing a green card, the instructions do not say "Warning: If you have criminal convictions that make you deportable from the country, then filing this application will put you into removal proceedings." So people with criminal convictions that make them deportable apply to get a new green card and instead of a new green card, they get a notice to appear in immigration court. I don't know what gaps will be in the deferred action instructions, but I know there will be gaps. Those gaps will get people into trouble.

Rarely does a week go by without someone coming to my office who has tried to handle their own immigration issues. They've looked at the forms on the USCIS website and thought "Oh. This isn't so difficult. I can do this without help from an attorney." Or they go to a notario. The notario's reaction to the forms has been quite similar "Oh. This isn't so difficult. I can fill these forms out and make some money doing so." Or they turn to people at their church who aren't claiming to be notarios, but also look at the forms and say "Oh. This isn't so difficult. I can help people in my congregation fill out these forms. " Then things don't go quite as planned and the applicant or petitioner comes to my office.

When those individuals come to me, sometimes I can solve the problems. Invariably my fees for undoing the damage are greater than the cost of hiring me before doing anything. Sometimes though I cannot solve the problem. In the worst cases, people are then separated from family, if not permanently then for 10 or 20 years. A consultation with me (or any other experienced immigration attorney) before doing anything would have avoided the situation, even if it meant the person did nothing to try to sort out their immigration status.

It also would be naive to assume USICS will be benevolent and forgiving when making decisions on deferred action applications, or to ignore DHS's track record in other discretionary programs such as prosecutorial discretion, the initiative that was launched in August 2011 to close immigration court cases. The Obama administration has placed more individuals into removal proceedings than any other administration. There are over 300,000 cases pending in immigration court. The most common charge is "entering the country illegally." The government finds these individuals because they have committed a minor crime (usually an OWI/DUI or misdemeanor battery or posession of marijuana or petty theft). That minor crime then disqualifies them from prosecutorial discretion. (Hence, the initiative has closed less than 8,000 cases and has not lived up to expectations of reducing court caseloads.) It is minor crimes that will disqualify many potential deferred action applicants. If they apply for deferred action, they will get referred to immigration court. Similarly, an "Oops. I forgot to report my trip abroad." (and the trip lasted more than 90 days) or "I didn't think that was important." or a fake birth certificate that makes the applicant 30 instead of 31 on June 15, 2012 could lead to an application being denied for misrepresentation or fraud. The government has zero tolerance of fraud and has said it will prosecute individuals who commit fraud on a deferred action application to the fullest extent possible, which means possible criminal prosecution and possible referral to immigration court.

Bottom line: People potentially eligible for deferred action need experienced immigration attorneys assisting them, even if just to do a comprehensive assessment of the applicant's situation. Whether that immigration attorney works privately or for a CBO doesn't matter. What matters is getting good, sound legal advice from an experienced immigration attorney.

After an assessment, the individual still has the choice whether or not to be represented by an immigration attorney when the deferred action application is filed.

If you go to a private immigration attorney, she or he will probably charge you a consultation fee to review your facts. Particularly if the assessment determines you are ineligible, that consultation fee has saved you from being placed into removal proceedings, a priceless benefit given the consequences of being forced to leave the country and the expense of legal representation in removal proceedings.

Many private immigration attorneys work on a flat fee basis so you know exactly what your costs are. They base their fees on the complexity of the work that has to be done. Even those who work on an hourly fee should be able to give you some type of estimate for the total cost.

Messrs. Durbin & Guiterrez suggest that a $1,000 for attorney fees would be unreasonable. For an uncomplicated case, perhaps, but for a complicated case, definitely not. What would make a case complicated? Trips outside the U.S. Little documentary evidence of presence for the last five years or entry prior to age 16. Proving economic necessity for an individual under age 18 and living with parents. Minor criminal convictions or municipal violations. These complexities will require additional attorney time to create affidavits to explain the complexities. They also may take legal research to develop arguments for why the deferred action and/or employment authorization application should not be denied as well as time needed to write the arguments in the cover letter for the client's application. Attorneys charge for the time they spend on a client's case.

Be smart and sensible about deferred action: Talk with an immigration attorney.

August 03, 2012

USCIS has just concluded a teleconference on deferred action. The process for deferred action is now much clearer though some details remain to be sorted out.

Key points are:

No applications accepted until August 15, 2012.

There will be a new USCIS form specifically for requesting deferred action. The form will be available on the USCIS website on August 15, 2012.

Applications will go to a lockbox and will be processed at all four USCIS service centers.

USCIS cannot predict likely processing time because it depends on how many applications are received.

The filing fee for deferred action will be $465.00. The fee includes the application for employment authorization and a biometrics (fingerprint) appointment. If an applicant does not request employment authorization, then the application fee will be just $85.00.

Employment authorization will be given to those who can prove "economic necessity." The economic necessity requirement may make employment authorization difficult for applicants between ages 16-18 and in high school unless they can show they are emancipated minors or they are homeless.

There will be no filing fee waivers.

Certain individuals will be able to request a fee exemption. The fee exemption must be approved before filing the request for deferred action. There will be a separate process for requesting a fee exemption.

All applicants will have a biometrics (fingerprint) appointment at the immigration office closest to where they live.

Any applicant who does not have a high school diploma or a GED certificate and also is not honorably discharged from the Coast Guard or U.S. Armed Forces, must prove enrollment in school on the date of application. Individuals without an HSD or GED should enroll in school immediately. For those under age 18, should enroll in their local high school if they are not already in school. Those over age 18 must find a GED program.

With exception for individuals in removal proceedings, applicants must be at least 15 years old on the date the application is filed. This means individuals under age 15 who meet all other criteria will be able to apply on their 15th birthday.

Brief, innocent trips abroad prior to August 15, 2012 will not break the required 5 years of continuous presence. "Brief" trips will likely be defined as "less than 90 days." "Innocent" trips will likely be defined as "not under removal order or threat of removal order." The latter will mean anyone who left the U.S. under a removal order or under a voluntary departure order and then re-entered will not qualify even if their time outside the U.S. is less than 90 days.

Individuals approved for deferred action will be allowed to travel abroad for humanitarian (e.g. sick relatives), educational or employment reasons. The travel may happen only under terms of advance parole. Advance parole must be approved prior to departure. Advance parole is requested using Form I-131. Advance parole cannot be requested at the same time deferred action is requested.

Affidavits as evidence will be good only if accompanied by other documentary evidence. Affidavits will help to supplement documentary evidence, e.g. to explain gaps in proof of continuous evidence. Applications will not be approved based on affidavits alone.

Certain criminal convictions will result in denial of a request for deferred action: all felony convictions; misdemeanor convictions for domestic violence, sexual abuse of a minor (including 4th degree sexual assault in the State of Wisconsin), burglary, carrying a concealed weapon, drug distribution or trafficking and OWIs (drunk driving offenses) regardless the amount of time served. Other misdemeanors will disqualify the applicant if time served in jail exceeded 90 days.

Minor traffic offenses will not be considered criminal convictions.

An approved request for deferred action will be good for 2 years and renewable. Whether a request for renewal gets approved will very likely depend on proving continued residence in the U.S., having a high school diploma or GED or being in school and no significant criminal convictions.

If an application is denied, there can be no appeals, no motions to re-open and no motions to re-consider.

Applicants who are denied deferred action will be referred to Immigration & Customs Enforcement only if they have significant criminal convictions.

Information provided as part of the deferred action request process will be shared with ICE only if the applicant has committed serious criminal offenses.

Anyone engaging in misrepresentation on a deferred action application will be prosecuted to the fullest extent under federal law and placed into removal proceedings.

Blackwell Law Group will be assisting individuals with deferred action requests. Interested individuals should contact us at 414-964-1900.